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1) THE KIDUSHIN D'RABANAN OF A "KETANAH"
QUESTION: The Gemara discusses a Ketanah whose father died. The Rabanan
instituted that her mother or brother may marry her off with Kidushin
d'Rabanan, for which the has the option of doing Mi'un. According to Beis
Shamai, from the moment that she enters the Chupah (i.e. Nisu'in), and even
from the moment "that her father passes her over to the husband's
entourage," she may no longer do Mi'un.
RASHI (DH Masar ha'Av) explains that when the Gemara mentions the "father"
passing over the daughter to the husband's entourage, it cannot mean
literally the father, because if the Ketanah had a father then she would not
be getting married with Kidushin d'Rabanan. When her father marries her off,
the Kidushin is d'Oraisa and there is no option to do Mi'un! Kidushin
d'Rabanan exists only when she has no father, and her mother or brother
married her off.
Why does Rashi insist that the Gemara cannot be referring to the father
himself, and that in order for the Kidushin to be d'Rabanan the father must
not be alive? There is a situation where the father is alive and yet the
Kidushin is nonetheless d'Rabanan!
We know that there can be a situation of "Yesomah b'Chayei ha'Av," where the
Kidushin is d'Rabanan even when the father is alive. If the father marries
her off, and then she gets divorced, the father may not marry her off again
and she is considered a "Yesomah b'Chayei ha'Av." If she then marries
someone else while she is a Ketanah, the Kidushin is d'Rabanan and she has
the option to do Mi'un! (Rashi himself discusses this situation on 109a, DH
Ketanah, and earlier on 2b and 12a.) Thus, "the father passed her over" can
mean literally the father! Why does Rashi say that it cannot mean the
father? (HAGAHOS YA'AVETZ and ARUCH LA'NER; see also Insights to 89b.)
ANSWER: The RITVA here discusses this question. The Ritva infers from Rashi
that although the mother and brother may marry off the Ketanah after her
father dies, when the Ketanah is a "Yesomah b'Chayei ha'Av" and the father
is alive, the father no longer has control over deciding whom she marries
*at all*, and he cannot marry her off even with Kidushin d'Rabanan. The
Ritva cites Rashi later (109a, DH v'Hechzirah) as further support to show
that this is Rashi's opinion.
Actually, there are a number of opinions among the Rishonim regarding what
type of Kidushin constitutes the Kidushin d'Rabanan of a "Yesomah b'Chayei
(a) A simple reading of the Ritva might lead us to assume that according to
Rashi, a "Yesomah b'Chayei ha'Av" cannot become married even with Kidushin
d'Rabanan since her father is alive, and she remains a Penuyah.
However, this is not possible, because the Gemara says in numerous places
that she *can* get married. For example, the Gemara earlier (12a) discusses
a case of one's "daughter" who falls to her father for Yibum and does Mi'un
to her deceased husband. Obviously, in that case the father was alive when
the daughter became married with Kidushin d'Rabanan. This is also the
meaning of the Mishnah later (109a) that states that a "Yesomah b'Chayei
ha'Av" may get married but not with a "Kidushin Gemurin," implying that she
does have Kidushin d'Rabanan. Rashi himself makes this clear in many places
(c.f. 2b and 12a), as the YASHRESH YAKOV and other Acharonim ask (see
footnote of Rav Aharon Yaffen on the Ritva, #43).
It seems clear that Rashi means that the father cannot marry off his
daughter when she is a "Yesomah b'Chayei ha'Av," but she does have Kidushin
d'Rabanan if she accepts the Kidushin herself. (The Gemara refers to a
Mema'enes making her own Kidushin on Daf 108a.) Just like it is not in the
power of the father to marry her, he also cannot pass her over for Chupah.
That is why Rashi says that the Gemara does not mean that the father himself
passed her over to the husband, because the father does not have that
authority when she is a "Yesomah b'Chayei ha'Av." The TZAFNAS PANE'ACH
(Hilchos Ishus 4:7) reaches the same conclusion about Rashi. In fact, he
points out that Rashi says this explicitly in Gitin (65a, DH u'Chenegdan),
and in Kidushin (44b, DH Ma'aseh Yesomah).
It seems clear that if the father cannot marry her off, then certainly the
other relatives also cannot marry her off. Apparently the Rabanan did not
empower her relatives with the authority to marry her off, because they were
not concerned for her well-being, since she has a father to take care of her
(even she herself may be Mekabel Kidushin d'Rabanan).
(The Aruch la'Ner assumes that according to the way that the Ritva
understands Rashi, it is only the *father* who cannot be Mekadesh the
Ketanah, but her mother and brother *can* be Mekadesh her. This, however, is
very difficult to justify logically.)
(b) The Ritva continues and quotes others ("Yesh Mefarshim") who say that
the Rabanan *did* institute that the father may marry off the daughter with
Kidushin d'Rabanan (and the option for Mi'un) even when she is a "Yesomah
b'Chayei ha'Av." The Ritva does not write whether or not the other relatives
can marry her off. It might well be that while the father is alive and can
marry her off (mid'Rabanan), the other relatives cannot marry her off.
(c) The BEIS SHMUEL (EH 155:1) writes that not only can the father marry her
off, but even the mother and brother can marry off the "Yesomah b'Chayei
ha'Av" with Kidushin d'Rabanan, just like they may marry off a normal
2) HALACHAH: HOW MANY WITNESSES ARE NEEDED FOR YIBUM
OPINIONS: The Gemara records an argument regarding how many witnesses must
be present when a Ketanah performs Mi'un. The Beraisa first says that,
according to Beis Hillel, three people must be present. It concludes that
there are other Tana'im who say that two witnesses suffice and that the
Halachah follows that view. The Rishonim argue about what the Beraisa means.
(a) TOSFOS (DH Machshirin) says that Mi'un may be done even in front of one
person. The reason the Gemara mentions that it must be done in front of two
is because without two witnesses, it cannot proven that she did Mi'un. The
Mi'un itself, though, would be valid even if two witnesses were not present
and it cannot be proven in Beis Din. If Mi'un is performed in front of a
single person and there are two witnesses hiding nearby who witness the
Mi'un, the Mi'un would be valid, and it could even be proven in Beis Din.
This also seems to be the view of RASHI (108a, DH Chenvani) and the RASHBA
HALACHAH: The SHULCHAN ARUCH (EH 155:4) cites both opinions.
The RITVA adds that even if there are not two witnesses watching the Mi'un
from behind a fence, a girl is believed if she admits that she perform Mi'un
in front of one person. She is believed from now on (and not retroactively
from the time that she says she did Mi'un), because it is in her hands to do
Mi'un now in any case.
The OR ZARU'A (1:673) cites RABEINU SIMCHAH who mentions another case of
Mi'un before a single person, for which proof will not be necessary. He says
that the Mi'un is valid even when she does it in front of only the husband.
When both she and her former husband later admit in court that she did
Mi'un, no further proof of the Mi'un is necessary.
(b) The RAMBAM rules (in Perush ha'Mishnayos 13:2, and in Hilchos Gerushin
11:8 and Hilchos Ishus 4:9) that Mi'un must be done in front of two people.
This is also the view of RABEINU CHANANEL as cited by Tosfos (DH Halachah),
the Rashba, and other Rishonim.
Rabeinu Chananel adds that two witnesses are sufficient only b'Di'eved;
l'Chatchilah, Mi'un must be done in front of three people.
According to the Rambam, the two witnesses are required not merely to prove
that the Mi'un occurred, but actually to effect the Mi'un, because without
them, the Mi'un is not valid. Apparently, Mi'un has a status of a "Davar
sh'b'Ervah," similar to Kidushin (and Gerushin), and therefore it must be
done in front of two witnesses in order for it to be effective. Without
those witnesses, it does not take effect at all. (That is, the witnesses are
not "Edei Ra'ayah," witnesses her serve to prove that the event occurred,
but they are "Edei Kiyum," witnesses who play a part in making the act take
effect; see Kidushin 65b.)
The CHAZON ISH (111:8) adds that according to this, even if there are two
witnesses present when Mi'un is done but they are hidden from view, the
Mi'un is *not* valid, because witness who are hiding are not valid for
Kidushin and any other act that requires "Edei Kiyum."